Orient Ins. Co. of Hartford, Conn., v. Clark

• Decision Date: 14 December 1900
• Citation: 59 S.W. 863
• Parties: ORIENT INS. CO. OF HARTFORD, CONN., v. CLARK. [1]
• Court: Kentucky Court of Appeals

59 S.W. 863

ORIENT INS. CO. OF HARTFORD, CONN., v. CLARK. ^[1]

Court of Appeals of Kentucky.

December 14, 1900

Appeal from circuit court, Henderson county.

"Not to be officially reported."

Action by Georgiana Clark against the Orient Insurance Company of Hartford, Conn., on a policy of fire insurance. Judgment for plaintiff, and defendant appeals. Affirmed.

S. B. &amp R. D. Vance, for appellant.

R. H Cunningham, for appellee.

BURNAM J.

The petition alleges that the Orient Insurance Company on the 16th day of September, 1896, issued its policy of insurance to Hugh Kerr's executor and to Sue Gilmore administratrix of, and trustee for, Allen Gilmore, deceased on a three and two-story brick and frame shingle-roof building, and its additions adjoining and communicating with it, situated on the southwest corner of Second and Water streets, in the city of Henderson, against loss or damage by tornadoes, cyclones, hurricanes, and windstorms, to the amount of $1,500; and the policy provides that any loss that may be ascertained and proven, due the assured under the policy, shall be payable to Mrs. Georgiana L. Clark for a term of three years from the date of the policy; that on the -- day of January, 1898, while the policy was in full force the building was damaged by a windstorm to the amount of $700, for $420 of which the defendant was liable as its proportion of the total amount of insurance on the building; that written notice of the loss and damage was at once given to the defendant, but it had wholly failed and refused to pay the same. Appellant, by way of defense, alleged in its answer that the policy contained the following conditions: "Persons sustaining loss shall within sixty days thereafter render a particular account of such loss, signed and sworn to by them," etc. "If this policy be made payable in case of loss to a third party, the proof of loss must be made by the party insured." The answer also denies that there had been furnished to it any proof of loss made by the parties insured in said policy, or either of them, or by their authorized agent. It also pleads that, after the lapse of 60 days allowed for furnishing the proof of loss, its refusal to pay for reason that the policy was void was no waiver of proof. It also alleges that the policy by its terms was to expire on the 19th day of September, 1897. The plaintiff, for reply to this averment of the answer, says that the premium was paid on the policy issued for a term of three years from September 16, 1896, until September 16, 1899; that the defendant's agent or clerk, in filling up the policy, by mistake or oversight inserted the date of September 16, 1897, instead of September 16, 1899; and that the indorsement on said policy by said agent clearly shows its expiration to be September 16, 1899. It appears that the original proofs of loss were made out by the defendant's adjuster, Hoffman, and, at his instance, were sworn to by David Clark, as agent for his mother, the plaintiff herein, who was the equitable title holder of the property insured, and that they were then forwarded by Hoffman to the general managing agent of the company, who on the 14th day of February, 1898, returned them, with this letter: "Chicago, Feb. 14th, 1898. David Clark, Jr., Henderson, Ky.: We return herewith proofs of loss in Orient tornado policy 16,662, wherein you make claim for damage which occurred on the 24th of Jan. We decline to recognize your right to act for assured in this case, there being no papers attached to indicate that you have been appointed to that office. Very truly yours, B. W. French, General Agent." David Clark then turned the proofs over to D. W. Lambert, the agent of the company who had issued the policy, and requested him to have the papers corrected and put in proper shape. At his instance, and that of Mr. Buckner, the company's local agent at Henderson, the proofs of the loss were sworn to by W. S. Alves, agent for Kerr's executor, and they were again forwarded to the company. In response to this communication, B. W. French wrote this letter to Mr. Alves: "Chicago, Feb. 18, 1898. Mr. W. S. Alves, Henderson, Ky.--Dear Sir: We received this...